The Environmental Protection Agency and the U.S. Army Corps of Engineers applied a narrow Supreme Court opinion from 2006 to propose a rule Tuesday that would expand federal jurisdiction over streams, wetlands and other waters. Once published in the Federal Register, the agencies will accept public comment for 90 days.  

EPA, Corps propose expanded Clean Water Act authorityIn a news release, EPA says the proposed rule will clarify jurisdiction over streams, wetlands and other waters that have been a subject of confusion for decades. It will apply to all Clean Water Act programs, but EPA says it will not protect any new types of waters that have not historically been covered under the Act.

“We are clarifying protection for the upstream waters that are absolutely vital to downstream communities,” said EPA Administrator Gina McCarthy. “Clean water is essential to every single American, from families who rely on safe places to swim and healthy fish to eat, to farmers who need abundant and reliable sources of water to grow their crops, to hunters and fishermen who depend on healthy waters for recreation and their work, and to businesses that need a steady supply of water for operations.”

While EPA Administrator told reporters Tuesday the proposal does not expand the CWA, the agency’s own economic analysis shows an increase positive jurisdictional determinations of 3 percent under the CWA Section 404 program. The analysis broadly applied the 3 percent increase assumption to other permitting programs. Additionally, the analysis claims the proposed rule will impact an additional 1,332 acres nationwide under Section 404 and says the benefits will outweigh the costs by a ratio of approximately 2:1. Some have questioned the low estimates EPA cites in the analysis saying the agency has far underestimated the impacts it will have nationwide. 

According to EPA, the proposed rule clarifies that under the CWA:

  • Most seasonal and rain-dependent streams are protected;
  • Wetlands near rivers and streams are protected;
  • Other types of waters may have more uncertain connections with downstream water and protection will be evaluated through a case specific analysis of whether the connection is or is not significant.

The agencies say the proposed rule is based on a reported titled Connectivity of Streams and Wetlands to Downstream Waters: A Review and Synthesis of the Scientific Evidence. The report, at the time the rule was proposed, has not been finalized and is still undergoing peer review. Agricultural groups have questioned how the agency can purport to base a proposed rule on a report that has not been finalized.

Under the CWA, there are numerous exemptions and exclusions for farming and ranching practices. EPA says the proposed rule preserves those exemptions. Additionally, the agencies say they have worked with USDA to develop an “interpretive rule” to ensure 53 specific conservation practices related to water quality will not be subject to Section 404 dredged or fill permitting requirements.

Environmental groups and the National Farmers Union praised EPA and the Corps for their work on the proposed rule. Other agricultural groups and some lawmakers were not so positive.

Texas Congressman Lamar Smith who serves as chairman of the House Committee on Science, Space and Technology says this rule could allow EPA to regulate “virtually every body of water in the United States.” Rep. Smith also challenges EPA on the fact that the rule was proposed prior to completion of the scientific review.

“In preparing this proposal, the EPA failed to incorporate adequate peer-reviewed science in accordance with the agency’s own statutory obligations.  This could be the largest expansion ever of EPA’s authority to regulate private property,” Smith says. “It’s troubling that the Administration proposed this expansion before its independent science advisors have had the chance to complete its review of the underlying science. The Obama administration continues to sidestep scientific integrity in order to fast track an abusive regulatory agenda.” 

The National Cattlemen’s Beef Association asserts that the proposed rule would bring virtually all waters, regardless of size or continuity of flow, under federal regulation and says the agencies and the administration have gone too far.

“This proposal by EPA and the Corps would require cattlemen like me to obtain costly and burdensome permits to take care of everyday chores like moving cattle across a wet pasture or cleaning out a dugout,” said NCBA President Bob McCan.

Specifically, NCBA said almost all activities on open land will now touch a “water of the United States.” For the first time ever, ditches are included in the definition of tributary, meaning activities near jurisdictional ditches will now require a federal permit.

“This proposal flies in the face of the Constitution and the Supreme Court’s interpretation of the EPA and Corps’ jurisdiction under the Clean Water Act. It takes the authority Congress granted EPA beyond the scope of Congressional intent. This is an illegal act by the EPA, and we will defend the rights of our members and producers,” said McCan.

Listen to more concerns raised by NCBA in its weekly Beltway Beef Audio Report with Ashley McDonald, NCBA environmental counsel.